RAGHUNATH HALDER Vs. GITA BALA HALDER AND ORS.

JUDGEMENT

(1.) Order impugned passed by the learned Civil Judge, Junior. Division, 3rd Court, Diamond Harbour in Misc. Case No.6 of 2007 is challenged by the defendant/ petitioner.

(2.) Mr. Hiranmoy Bhattacharya, learned Counsel appearing for the petitioner submits that the successors of the plaintiff, since deceased, moved two applications before the learned Court below, one is for setting aside abatement and the other one is for condonation of delay under Section 5 of Limitation Act and all those applications were taken up together and disposed of thereby treating the abatement application as application under Order 9 Rule 9. Mr. Bhattacharya submits, after the death of the plaintiff, Haripada Haldar, the successors got opportunity to make application for restoration of the title suit but the successors of the plaintiff did not approach the learned Court below within limitation period. However, he submits that the reasons disclosed in the application under Section 5 are not sufficient reasons to condone the delay.

(3.) Mr. Bhattacharya submits that the evidence laid at the time of cross-examination will show that the successors have due knowledge about the suit but they did not take step. Medical certificate produced and relied upon by the successors were not proved. Therefore, Section 5 application ought not to have been allowed.